STRIKING OUT WITNESS STATEMENTS BECAUSE OF IRRELEVANT MATERIAL AND "SIGNIFICANT DEVELOPMENTS" IN RELATION TO CHANGES OF COSTS BUDGETS

The Mitchell libel case led to a number of interlocutory hearings and applications, some of which had a profound effect on civil procedure (for a while at least). The case of Yeo -v- Times Newspapers Ltd is also leading to some interesting interlocutory hearings as seen in the judgment of Mr Justice Warby today at [2015] EWHC 2132 (QB).

KEY POINTS

Part of the claimant’s witness statements were struck out as being inadmissible or irrelevant.

There had not been any “significant developments” in the litigation so as to justify a revision of the costs budget.

THE CASE

Mr Yeo is bringing an action for libel against the publishers of the Sunday Times, it is due to be heard in October. At the pre-trial review stage the judge considered, among other things,:

(i) an application by the defendant to strike out part of Mr Yeo’s witness statements;

(ii) an application by Mr Yeo for approval of an amendment to his costs judgment.

STRIKING OUT PART OF THE CLAIMANT’S WITNESS STATEMENT

Some of the objections in relation to the witness statement of Mr Yeo are quite specific, they involve issues of Parliamentary privilege. However the point that a witness cannot simply rehearse or rely on findings of other bodies are of general interest and importance.

The part of the statement objected to

The claimant had referred in his statement to reports of the Parliamentary Standards Board.

“[the claimant] served a statement from Mr Yeo which itself contained a large number of passages placing reliance on the Standards Report, or what Mr Yeo had said to the Commissioner. According to the submissions of Mr Browne QC the first time that the claimant’s team appreciated that there might be an issue of significance concerning Parliamentary Privilege was when they received a letter from TNL’s solicitors on 6 July 2015. This attacked the content of Mr Yeo’s witness statement, and parts of his pleadings, and invited his solicitors to agree that specified paragraphs or parts of paragraphs should be struck out.

The first objection taken by TNL, which applied to considerable parts of the witness statement, was that it referred to the Standards Report. Such material was said to be irrelevant and inadmissible for four separate reasons: (1) the issue considered in the Standards Report, namely whether Mr Yeo had acted in breach of the Code of Conduct, does not arise in this claim; the published allegation was that he was “prepared to and had offered himself as willing” to act in a way that was in breach of the Code; (2) in any event, it is for the court to adjudicate on the dispute and the views expressed in the Report are immaterial; (3) reliance on Parliamentary proceedings in support of Mr Yeo’s case was objectionable in principle, as there would otherwise be unfairness to TNL because Parliamentary Privilege would preclude it from disputing the views relied on; (4) for similar reasons references to alleged delay in the provision of recordings by TNL to the Commissioner were objectionable. The first two of these points had been made at the outset, in TNL’s original Defence.”

THE JUDGE’S DECISION IN RELATION TO STRIKING OUT PARTS OF THE WITNESS STATEMENT

Mr Yeo’s witness statement and other parts of his statements of case

I have described above the nature of TNL’s objections to the content of Mr Yeo’s statement and pleadings. By the time of this hearing extensive concessions had been made on Mr Yeo’s side. It was accepted, in particular, that it is not legitimate for Mr Yeo to rely in support of his case on (a) what he said to the Commissioner or to the Standards Committee or (b) the findings of the Commissioner or the Standards Report, and that the many references to such matters that are contained in his statement must be removed.

It is not necessary, in order to reach that conclusion, to enter into debate about the reach of Parliamentary Privilege. Evidence of what Mr Yeo said to the parliamentary authorities in the form “As I said to the Commissioner …” is objectionable as impermissible self-corroboration, regardless of whether it would also infringe Parliamentary Privilege, or be unfair because a response would do so. As for evidence of findings made by the Commissioner or in the Standards Report, this is inadmissible according to well-settled principles recognised in Hollington v Hewthorn [1943] KB 587 and the majority in Three Rivers DC v Bank of England (No 3)[2003] 2 AC 1: see in particular [28]-[33] [79], [103], (Lord Hope), and [130]-[133] (Lord Hutton). The issues in this case must be resolved by the court, and not by reference to what Mr Yeo said to parliamentary bodies, or the findings made by those bodies.

Some further concessions have been made in the course of argument at the hearing. Those concessions include the removal of a section of the witness statement relating to a falling out between Mr Yeo and Paul Staines, aka “Guido Fawkes”, which was rightly accepted to be irrelevant. But there remains a small number of areas of dispute about the admissibility of passages objected to by TNL. I have identified orally to the parties my conclusions on those issues, and given brief reasons for those conclusions. I will summarise them shortly.

i) Para 89. Objection is taken to the inclusion of a complaint of unreasonable delay by TNL in providing a copy of the video recording of the Nobu lunch to the Standards Commissioner. Mr Millar points out that TNL’s case is that it acted with reasonable speed. He submits that TNL has a case which could not be advanced without infringing Parliamentary Privilege, as it would involve a critical examination (in both senses) of the conduct of Mr Yeo in instigating the investigation and of the dealings between TNL and the Commissioner. He cannot go into further detail to support this argument without infringing privilege, he submits. The argument is that it is unfair to allow Mr Yeo to make this complaint, if TNL would be prevented or hampered by privilege from defending itself. I accept that submission. As Lord Woolf MR said in Hamilton v Al Fayed [1999] 1 WLR 1569, 1586G, the courts cannot and must not pass judgment on any parliamentary proceedings. See also Stanley Burnton J in Office of Government Commerce v Information Commissioner [2010] QB 98 at [58]. In deciding to strike out this passage, and the corresponding pleading, I bear in mind proportionality. We are concerned here with complaints made in aggravation of damages, in a case where, if the claim succeeds, there will be substantial damages awarded.

ii) Para 90 makes a similar complaint, of deliberate withholding of evidence from the Commissioner. That must be struck out for the same reasons.

iii) TNL objects to a number of passages in a section of the witness statement that deals with whether Mr Yeo “coached” a witness to a Parliamentary Committee, one John Smith. The fundamental nature of the objection taken is that Mr Yeo does not complain of any defamatory allegation of that nature, there is accordingly no pleaded defence in that regard, and this section is irrelevant prejudice. I have concluded as follows:

a) Para 77: deletion of the first and last sentences is conceded. The other material is of little assistance, perhaps, and to some extent repetitive, but not so prejudicial that it is necessary to strike it out.

b) Para 78: the objection that has not been conceded is to Mr Yeo’s statement that if “the coaching allegation” had been put to him he would have denied it, but it was not mentioned until too late. Since he does not complain of such an allegation this is irrelevant. He complains elsewhere in his statement of being given late notice of the allegations of which he does complain.

c) Para 80: the first three sentences deal with the merits of a complaint about “the coaching allegation” and the way it was put to TNL in correspondence. Mr Browne submits that the facts related here are true and unobjectionable. They are however irrelevant and should be removed.

iv) The part of paragraph 10.2 of the Amended Particulars of Claim that corresponds to Mr Yeo’s paragraph 89 must be struck out, for the reasons given above.

APPLICATION TO AMEND THE COSTS BUDGET

The judge then considered an application to revise the costs budget.

Revision of Mr Yeo’s costs budget

In February 2015 I approved the parties’ costs budgets in reduced sums: [2015] 1 WLR 3031 [52]-[73]. On Friday 10 July 2015 Mr Yeo’s solicitors served a revised Costs Budget, and on Monday 13 July 2015 they issued an application for approval of the Revised Budget, seeking to add various sums. Some of those items have since been abandoned. One has been agreed and approved by me: an additional £450 for trial. A much more substantial item amounting to £36,120 in total is however disputed.

The item is described in the Revised Budget in this way: “Contingent Cost A: Considering impact of parliamentary privilege and considering and making amendments to statements of case and witness evidence of both parties.” A breakdown appears on page 5 from which it appears that, as noted above, a total of nearly £21,000 had been incurred in this connection by the time the budget was signed. This was split more or less equally between solicitors’ and Counsel’s fees. A further £15,440 was then estimated as future costs.

On behalf of Mr Yeo it is submitted that I can and should approve this budget variation pursuant to PD3E 7.6, which provides, so far as relevant, that

“Each party shall revise its budget in respect of future costs upwards or downwards, if significant developments in the litigation warrant such revisions. … The court may approve, vary or disapprove the revisions, having regard to any significant developments which have occurred since the date when the previous budget was approved or agreed.”

The objections raised by TNL give rise to the following issues:

i) Can PD3E 7.6 be employed to obtain approval for costs that, by the time of the revised budget, are incurred costs? Paragraph 7.6 itself refers to “future costs”, and PD3E 7.4 provides that the court “may not approve costs incurred before the budget”.

ii) Has there been a “significant development in the litigation”? TNL submit that there has been none, and that the approach to Parliamentary Privilege adopted on Mr Yeo’s side has been both tactical and misconceived.

iii) To the extent that there are costs, incurred or future, which it would be reasonable for the claimant to recover what mechanism is available, other than PD3E 7.6? The answer is of course relevant to issue (i) above. Mr Millar identifies two alternative routes:

a) CPR 3.18(b) (a Court may depart from a budget where “there is good reason to do so”) or

b) PD3E 7.9 (“If interim applications are made which, reasonably, were not included in a budget, then the costs of such interim applications shall be treated as additional to the approved budgets.”)

It seems to me that Mr Millar is right to submit that PD3E 7.6 is not an apt vehicle for obtaining the court’s approval for costs incurred before the budget. The wording of that paragraph and of PD3E 7.4 point firmly in that direction. In support of his submission to the contrary Mr Browne has reminded me of what I said at [71] of my February judgment:

“If work identified as a contingency is included in a budget but not considered probable by the court no budget for it should be approved. If the improbable occurs, in the form of an unexpected interim application, the costs will be added to the budget pursuant to PD3E 7.9, unless the matter involves a “significant development” within para 7.6[1] in which case, if time permits, a revised budget should be prepared and agreed or approved.”

I still take that view, but I do not think it supports Mr Browne’s position. The key words in that passage are “if time permits”. If the unexpected happens, and time does not allow for a revised budget to be approved before costs are incurred, then there will often, perhaps usually, be an unexpected interim application and PD3E 7.9 will apply. The fall-back position is CPR 3.18(b).

Mr Browne points out that this puts a high premium on swift action to prepare a revised budget. That must be right, but I do not see it as a good reason to adopt a different interpretation. Take this case. The issue is said to have arisen on 6 July. It has not been made clear to me why a revised budget could not have been prepared sooner than 10 July. There is some force in Mr Browne’s submission that the analysis I have set out is unsatisfactory for an individual paying privately, such as Mr Yeo. It leaves him in undesirable uncertainty about the recoverability of a large slice of cost until after the assessment stage. But I do not think that leads to a different conclusion. As I have said, such a litigant will normally have an unexpected interim application on which to peg reliance on PD3E 7.9. In any event the wording of the Practice Direction is too clear to allow me to accept that incurred costs can be approved in this way.

In any event, I am not persuaded that there has yet been a “significant development in the litigation” within the meaning of PD3E 7.6 which would justify the approval of the additional costs incurred (assuming for this purpose I am wrong in my above conclusions) or the additional costs forecast in the revised budget. The “significant development” in the litigation identified by Mr Browne is the repeal of s 13 of the Defamation Act 1996 in May 2015, and the consequent need to address issues of Parliamentary Privilege when this could otherwise have been managed by a waiver on Mr Yeo’s part, pursuant to that section. I find it hard to see the repeal of the section as a development of significance for the action. There is no evidence nor is there any indication that any thought had been given to Parliamentary Privilege, or waiver pursuant to s 13 before 6 July 2015. It is not a question of whether the claimant’s legal team were aware of the repeal of the section, which had escaped many of us, but whether the prospect of reliance on it had at any point been a real consideration.

In any event, as Mr Browne’s submissions implicitly acknowledge, the repeal of the section is not itself a development in the litigation, but something separate from it. I do not doubt that between 6 and 10 July Mr Yeo’s legal team did give attention to Parliamentary Privilege and the issues identified in the Revised Budget. But their approach does seem to me to smack of tactical maneouvering. The probability seems to me to be that one significant reason they paid attention to Parliamentary Privilege is that they had to consider the objections taken to Mr Yeo’s statement, which they realised were on analysis justified. That cannot be a significant development, let alone one justifying a budget increase.

The second main reason, in my assessment, is that they had identified aspects of TNL’s evidential case that they saw as undesirable from their client’s perspective. I can see that there is a good deal in the TNL statements that is, in the abstract, not necessary for the fair resolution of this claim. But as explained above, the evidence has been put forward in response to Mr Yeo’s Reply. Provided it is relevant and proportionate to that purpose he cannot complain. I do not consider this to be a “significant development” which requires significant expenditure on issues of Parliamentary Privilege. Whilst recognising the desirability of cutting the issues down, I am far from persuaded that the proper means of doing so is to engage in an elaborate or any debate about the ramifications of Article 9, rather than to revisit and cut down the case pleaded in the Reply.

It may yet be that some revision in the budget of one or both parties may in future be shown to be justified in order to deal with issues of Parliamentary Privilege, but at present I am not persuaded that I have been presented with any justification for approving the revision put forward on that ground, pursuant to PD3E 7.6.”